5.  The applicant was born in 1934 and is currently detained in a psychiatric hospital in Bayreuth.
6.  On 27 July 1994 the Freyung District Court convicted the applicant of three counts of sexual abuse of children and gave him a cumulative suspended sentence of eight months' imprisonment with probation. The applicant was found to have sexually abused a nine-year-old girl on three occasions in the spring of 1993. As confirmed by an expert, the applicant suffered from a pathological mental disorder such that diminished criminal responsibility (Article 21 of the Criminal Code) could not be excluded. On 10 December 1997 this sentence was remitted.
7.  On 16 March 1999 the Passau Regional Court convicted the applicant of two counts of rape and gave him a cumulative sentence of three years and six months' imprisonment (two years and nine months for each count of rape). The Regional Court found that the applicant had raped twelve-year-old S. twice within two weeks by use of force in the summer of 1986. It was reported by a psychiatric and a psychological expert that the applicant suffered from a continuous cerebral decomposition, due to which his criminal responsibility was diminished.
8.  According to the Regional Court's finding of facts, the applicant had had an extra-marital relationship with S.'s mother A. since 1980. Since then he had sexually abused S., then aged seven, at least once a week. Since 1982 he had had himself sexually satisfied also by P., A.'s elder daughter, then aged fourteen. These offences were time-barred when the victims reported them to the prosecution authorities. In the summer of 1982 the applicant persuaded fifteen-year-old P. to have sexual intercourse with him in exchange for his paying the family's electricity bill. P., who had initially consented, then asked the applicant to stop due to severe pain caused by the intercourse and resisted heavily, whereupon the applicant raped her by use of force. The prosecution of this offence was discontinued in view of the two counts of rape of which the applicant was convicted.
9.  The Regional Court did not examine whether preventive detention was to be ordered against the applicant because the relevant Article 66 § 3 of the Criminal Code was not applicable to offences which, as was the case for those of which the applicant was found guilty, had been committed prior to 31 January 1998 (section 1a § 2 of the Introductory Law to the Criminal Code, see paragraph 41 below).
10.  The applicant served his full sentence of three years and six months' imprisonment until 13 April 2002. Some two and a half months prior to that date, on 28 January 2002, the applicant was informed by the psychologist of Bayreuth prison that he could possibly be detained beyond that date under the Bavarian Act for the placement of particularly dangerous offenders very liable to reoffend (“Bavarian (Dangerous Offenders') Placement Act”) of 1 January 2002 (see paragraphs 43-46 below).
11.  On 10 April 2002 the Bayreuth Regional Court, sitting as a chamber responsible for the execution of sentences composed of three professional judges, having heard the applicant and his counsel as well as the representatives of Bayreuth prison and two medical experts, ordered the applicant's placement in prison for an indefinite duration under sections 1 and 2 of the Bavarian (Dangerous Offenders') Placement Act (see paragraphs 44-45 below).
12.  The Regional Court found that the applicant was liable to be placed in prison under section 1 § 1 of that Act. He had served a sentence imposed following his conviction for two counts of rape, the offences being serious enough to meet the requirements of Article 66 § 3 of the Criminal Code (see paragraph 41 below). The Regional Court further subscribed to the views expressed by both a psychological and a psychiatric and psychotherapeutic expert, who, in their reports dated 22 March 2002 and 1 April 2002 respectively, had found that following the applicant's conviction, new facts had evolved during his detention which warranted the conclusion that the applicant currently posed a serious threat to the sexual self-determination of others. It noted that the applicant had failed to participate in any therapeutic measure to address his sexual problems which had led to his offences and, by denying his offences in prison, had made any therapy pointless. Moreover, due to his organic personality disorder, which led to a continuous decomposition of his personality, the applicant was no longer able to reflect on his possibly deviant sexual behaviour and to discern limits. Statistically, his advancing age also increased his interest in children as substitutes.
13.  The Regional Court further noted that neither the applicant's placement in a psychiatric hospital (Article 63 of the Criminal Code – see paragraph 50 below) nor his preventive detention (Article 66 of the Criminal Code – see paragraphs 36-38 below) had been ordered (section 1 § 2 of the Bavarian (Dangerous Offenders') Placement Act). Moreover, the applicant had not been placed in a psychiatric hospital under the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (see section 1 § 3 of the Bavarian (Dangerous Offenders') Placement Act and paragraph 51 below). In fact, the Bayreuth Health Office had refused to request the applicant's placement in a psychiatric hospital under the latter Act after the applicant had served his prison sentence.
14.  Taking into consideration the experts' findings, the Regional Court found that there was a high risk that the applicant might re-offend. Not least because of his limited faculties, there was a concrete danger that reactions of his victims would result in his committing very serious offences.
15.  The Regional Court stated that it considered the Bavarian (Dangerous Offenders') Placement Act to be constitutional.
16.  On 3 May 2002 the Bamberg Court of Appeal dismissed the applicant's appeal as ill-founded. Endorsing the reasons given by the Bayreuth Regional Court, it found that the applicant was liable to be placed in prison pursuant to section 1 of the Bavarian (Dangerous Offenders') Placement Act. In particular, as had been convincingly shown by two experts, there was a considerable risk of recidivism.
17.  According to the Court of Appeal, the Bavarian (Dangerous Offenders') Placement Act was constitutional. It struck a fair balance between the applicant's interest in his liberty and the public interest in security. There was no breach of the principle of legitimate trust (Vertrauensgrundsatz), as the applicant had been informed in writing by the prison authorities that it was necessary for him to undergo therapy. Nor did the Act violate the prohibition on being punished twice for the same offence, as it was not his past offences, but the risk of his re-offending in the future which was decisive for his placement. Furthermore, the Bavarian legislature had the legislative power to pass the Act in question.
18.  The applicant subsequently lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Bayreuth Regional Court of 10 April 2002 and the Bamberg Court of Appeal of 3 May 2002. He argued that his detention was illegal because the Bavarian (Dangerous Offenders') Placement Act was unconstitutional, notably as the Bavarian legislature had not had the power to legislate on the subject-matter in question. Moreover, the provisions of the Act violated the prohibition of punishment without law and human dignity as they treated him as a mere “disturbing object”.
(a)  The Federal Constitutional Court's judgment
19.  On 10 February 2004 the Federal Constitutional Court, having held a hearing, partly allowed the applicant's constitutional complaint (no. 2 BvR 834/02), together with that of another complainant (no. 2 BvR 1588/02), Mr F. Oberländer, who was the applicant in application no. 9643/04 before this Court. It found unanimously that the Bavarian (Dangerous Offenders') Placement Act, as well as another comparable Act, the Saxony-Anhalt (Dangerous Offenders') Placement Act, were incompatible with Article 74 § 1 no. 1 read in conjunction with Articles 70 § 1 and 72 § 1 of the Basic Law (see paragraph 52 below) as the Länder did not have the power to enact the legislation in question.
20.  According to the Federal Constitutional Court, the area covered by the Länder statutes regulating the placement of offenders in detention after they had served their prison sentence – so-called retrospective preventive detention (nachträgliche Sicherungsverwahrung) – fell within the concurrent legislative powers of the Federation as it involved criminal law within the meaning of Article 74 § 1 of the Basic Law. The term “criminal law” in connection with the question of power to legislate covered the regulation of all, even subsequent, repressive or preventive penal responses by the State which used the offence as a connecting factor, which were aimed exclusively at offenders and which were factually justified by the original offence. This interpretation was compatible with the fact that measures of correction and prevention, such as preventive detention, were not to be classified as “penalties” to which the prohibition of retrospective punishment under Article 103 § 2 of the Basic Law applied. The objective of this latter provision, laying down a fundamental right, was different from that of a provision on legislative competence such as Article 74 of the Basic Law. Retrospective placement in prison under the (Dangerous Offenders') Placement Acts enacted by the Länder was very similar to preventive detention under the Criminal Code, both in relation to the applicable procedure and in relation to its nature, and had been authorised in order to complement the measures of correction and prevention under the Criminal Code by the possibility of a preventive detention which had not been ordered in the judgment of the sentencing court. The Länder therefore did not have the power to make laws on the placement of criminals in detention because the Federation exhausted its concurrent legislative power in this area. The court thus disagreed with the submissions of the Federal Government, which had taken the view that the Länder had legislative competence to regulate the subject-matter at issue.
21.  The Federal Constitutional Court found that placement in prison for an indefinite duration or for indefinitely renewable periods after an offender had served his full prison sentence constituted a particularly serious interference with the offender's right to liberty as protected by Article 2 § 2 of the Basic Law. It stressed that in order for the long-term deprivation of liberty ordered independently of a person's guilt to remain proportionate, it was necessary for it to be dependent on the prior commission of a serious offence. Moreover, the courts ordering placement in detention had to make their prognosis of the offender's dangerousness based on a comprehensive assessment of his offences and personality.
22.  The Federal Constitutional Court, by a majority of five votes to three in this respect, further found that the fact that the Länder did not have power to legislate did not result in the contested statutes being void. Instead, they were merely declared incompatible with the Basic Law and the Constitutional Court ordered their continued application until 30 September 2004. Until the expiry of that transitional period, the applicant's detention was covered by the decision of the Bayreuth Regional Court, based on the (Dangerous Offenders') Placement Act, which remained applicable.
23.  The court argued that the Federal Constitutional Court Act did not prescribe that a statute found to be unconstitutional was void under all circumstances, pursuant to section 95 § 3, first sentence, of the Federal Constitutional Court Act (see paragraph 55 below). The Act also allowed a mere declaration of incompatibility with the Basic Law pursuant to section 31 § 2 of the Federal Constitutional Court Act (see paragraph 54 below). Under the Federal Constitutional Court's case-law, a mere declaration of incompatibility and a limited continued application of the unconstitutional statute was possible if the immediate invalidity of the contested law removed the basis for protection of paramount interests related to the public good, and if the result of weighing those interests against the fundamental rights affected was that the interference had to be accepted for a transitional period.
24.  In the instant case, there was a paramount interest in protecting the public against offenders who had been found by at least two experts and by courts to currently pose a considerable danger to the life, physical integrity, freedom or sexual self-determination of others. In the event of the statutes being declared void, persons who were extremely dangerous would have to be released without the federal legislature having taken the decision imposed upon it – because it mistakenly assumed it had no power to do so – as to whether it was necessary to enact federal legislation. Such federal legislation on retrospective preventive detention could be compatible with the Basic Law if it applied only in limited circumstances.
25.  The public interest in effective protection from dangerous offenders could, in exceptional circumstances, outweigh the interest of the offender concerned by the unconstitutional Act in his personal liberty as guaranteed by Article 2 § 2 of the Basic Law. For the interference with the right to liberty to be proportionate, it was, however, necessary for the transitional period, during which the Federal Constitutional Court's order of continued application of the unconstitutional Acts served as the basis for the detention of the offenders concerned, to be short. Moreover, the criminal courts which had ordered placements on the basis of the impugned Acts had to re-examine without delay whether the placements complied with the reasoning set out in the Federal Constitutional Court's judgment. In particular, they had to base their placement decisions on a properly reasoned expert's opinion as to the dangerousness of the offender in question, in the light of his personality and the offences committed. Furthermore, they were authorised to order that the offender's placement be executed in a psychiatric hospital (Article 63 of the Criminal Code) if the offender's reintegration into society could better be furthered thereby, as prescribed by Article 67a § 2 of the Criminal Code (see paragraph 39 below).
(b)  The dissenting judges' view on the statutes' continued applicability
26.  According to the partly dissenting opinion of three judges, the unanimous finding of the Senate that the impugned Acts were unconstitutional should have led to their being declared void. As a consequence, the complainants would have had to be released. During the transitional period, the complainants were therefore detained without a legal basis.
27.  The minority argued that by ordering the continued application of an Act which it had found to be unconstitutional, the Federal Constitutional Court took responsibilities which, in accordance with the principle of separation of powers, were for the legislature to assume. Moreover, by ordering a continued application of the Länder statutes, it suggested that the Federal legislature authorise subsequent preventive detention, a measure which the Federation, when reforming the provisions on preventive detention in 1998 and 2002, had deliberately chosen not to introduce. The minority of judges stressed that there were numerous other, less intrusive instruments available to the courts, police and social authorities to avert the dangers posed by dangerous convicts on their release.
28.  In the minority's submission, the court's order that the Länder statutes continued to apply was also incompatible with Article 104 § 1 of the Basic Law (see paragraph 53 below). According to that Article, a person's liberty could only be restricted by virtue of a statute enacted by Parliament and only in compliance with the forms prescribed therein. The Federal Constitutional Court's order that the statutes continued to apply was, on the contrary, based on customary law and, being a court order, did not justify the deprivation of liberty. The minority further stressed that section 31 § 2, second sentence, of the Federal Constitutional Court Act, according to which a decision of the Federal Constitutional Court had force of law, was applicable only to a declaration that a statute was void and no longer applied, and not to a declaration, based on that court's case-law, that an unconstitutional statute continued to apply.
29.  Lastly, the minority took the view that the court's order of continued application of the Länder statutes disregarded the prohibition on the enactment of laws with retrospective effect. After serving the sentence imposed on them by the criminal courts, offenders had a legitimate expectation of release.
30.  On 16 December 2003 the Bayreuth Regional Court decided to suspend for one year the applicant's placement in prison pursuant to its order dated 10 April 2002. It instructed him to reside in an old people's home in Zell and not to leave the home without the permission of his custodian (Betreuer). Having regard to the findings of a psychiatric expert, the Regional Court found that the applicant's placement in the psychiatric department of an old people's home sufficiently averted the dangers he posed for the sexual self-determination of others.
31.  On 3 March 2004 the applicant was again detained in Bayreuth prison under a detention order issued under the Bavarian (Dangerous Offenders') Placement Act that day.
32.  On 26 March 2004 the Bayreuth Regional Court revoked the suspension of the applicant's placement in prison. It found that the applicant had repeatedly sexually harassed several old women suffering from dementia in the old people's home where he had been living. By this behaviour, the applicant had shown that he still posed a serious threat to the sexual self-determination of others.
33.  On 5 July 2004 the Bayreuth Regional Court ordered that the applicant's placement under the Bavarian (Dangerous Offenders') Placement Act, read in conjunction with the judgment of the Federal Constitutional Court of 10 February 2004, was to be executed in a psychiatric hospital in order to further his reintegration into society. On 28 July 2004 the applicant was transferred to Bayreuth psychiatric hospital.
34.  On 10 June 2005 the Passau Regional Court ordered the applicant's subsequent preventive detention under Article 66b § 1 of the Criminal Code (see paragraph 48 below) which was to be executed in a psychiatric hospital. On 23 March 2006 the Federal Court of Justice quashed that order and remitted the case to the Passau Regional Court.
35.  On 14 June 2007 the Hof Regional Court, having regard to the acts committed by the applicant in the old people's home (sexual harassment of persons incapable of resisting), ordered the applicant's placement in a psychiatric hospital under Article 63 of the Criminal Code. In view of that decision, the prosecution then applied to discontinue the proceedings concerning the applicant's subsequent preventive detention that were pending before the Passau Regional Court.